Cory v. Hotchkiss

LENNON, P. J.

The plaintiff in this action sought and recovered judgment against the defendants quieting his title to 160 acres of land situate in the county of Fresno. The defendants’ answer denied all of the material allegations of the plaintiff’s complaint, and, cross-complaining, claimed title to the lands in dispute by adverse possession, and also under a purported tax sale and deed from the county tax collector to one R. M. Barthold, which was followed by a deed from the latter to the defendant Hotchkiss alleged to have been made and executed for the benefit of Hotchkiss and the defendant Canty. The trial court found that the tax sale which was the basis of the tax collector’s deed to Barthold r was invalid, for the reason that it was made for an amount in excess of that permitted by law. It is conceded that the evidence sustains this finding, and that, as a consequence, the tax deed did not, as further found by the trial court, convey any title to the land in dispute to Barthold or his purported successor in interest. It is claimed, however, that by reason of the purported deed from the tax collector to Barthold and the deed from him to the defendant Hotchkiss, the defendants had color of title sufficient to support their claim of title to the land by adverse possession under the provisions of section 323 of the Code of Civil Procedure. The record title to the land having been shown to be in the plaintiff, presumptively he was seised of the possession within the time required by law; and therefore the burden was upon the defendants to show that they or either of them, having color of title to the land, had held and possessed the same as against the plaintiff for the full statutory period of five years preceding the commencement of the present action. (Code Civ. Proc., sec. 321.) In support of the burden thus placed upon the defendants they showed that yearly for seven or

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eight years prior to the commencement of the action the defendant Canty had in writing leased the land in suit to one Pucheu, for the purpose of pasturing sheep thereon, and that during a portion of each of those several years Pucheu did ran and pasture as many as three separate herds of sheep upon the land for a period of from two to six months in each year; each band of sheep had a herder, and these herders during the time that the sheep were pasturing were in the habit of traveling back and forth over the land. Bands of sheep belonging to other persons at times traveled across the land to water at a well situated on the southeast corner of the land. Pucheu’s sheep were upon the land only during the pasture season, and although during that season he was upon the land once a week, he did not know of his own knowledge whether his herders prevented the sheep of other persons pasturing upon the land leased by him; and because of his lack of knowledge as to where the lines of the land actually ran, he was unable to say whether or not the sheep of other persons had roamed and pastured upon the land at the times his sheep were there. Supplementing the evidence of Pucheu, there was testimony of another witness for the defense to the effect that he knew that Pucheu had pastured sheep upon the land in suit, and that, in so far as he knew, no other sheep were permitted to pasture there.